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In the trial of three Crips who in retaliation for an earlier homicide gunned down a man last year outside the mall, defense attorneys challenged the gang law repeatedly. One defendant’s attorney noted his client never denied being a Crip, because mere membership’s not against the law.

Another argued his client was associated with the Crips only by family, a connection insufficient to meet the standards of the law.

In the biker-shootout trial of three men affiliated with the Outcast Motorcycle Club, defense attorneys challenged prosecutors’ claims that the club is a criminal enterprise, arguing no evidence of previous crimes has been produced.

The jury agreed, apparently: All three suspects were found innocent not only of murder and aggravated assault, but also of breaking the gang law.

“That was a total farce,” defense attorney Stacey Jackson said of prosecutors’ charging his client with gang violence.

The prosecution produced no evidence the motorcycle club met the legal standards for a criminal gang, he said: “This case had nothing to do with criminal gang activity. That statute was not passed for this type of case…. There’s no evidence whatsoever that the Outcast Motorcycle Club was criminal street gang.”

The law was aimed at infamous street gangs known for crime, such as MS 13, Bloods, and Crips, Jackson said. Even the prosecution’s expert witness on gangs couldn’t provide evidence the Outcasts operated as an ongoing criminal enterprise, he said.

At one point Jackson told the court that if the motorcycle club met the standards for a gang simply because it had rules, insignia and customs, then, “The Rotary Club could be a gang.”

What’s a gang?

So, what constitutes a “criminal street gang”?

According to the law, it’s three or more people associated by “evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics, including, but not limited to, common activities, customs, or behaviors.”

But they must commit crimes, the law adds. Mere association is not enough: “Such term shall not include three or more persons, associated in fact, whether formal or informal, who are not engaged in criminal gang activity.”

The law has four prongs prosecutors must meet:

▪ 1. The suspect must have committed a crime, or conspired with, solicited, coerced or intimidated someone else to commit a crime

▪ 2. The suspect must be associated with a “criminal street gang,” as defined above.

▪ 3. The suspect must have committed the crime to advance the gang’s interests.

▪ 4. The crime must qualify as “criminal gang activity.”

The law has a long list of offenses that can be criminal gang crimes, and often refers to other code sections for additional lists and definitions.

Among those listed are racketeering, stalking, sex crimes, escaping prison, helping a child escape custody, vandalism, violating federal or international law and weapons crimes.

The law’s constitutionality was challenged in the 2009 Georgia Supreme Court case Rodriguez v. State. Plaintiffs claimed it infringed upon the First Amendment right to freedom of association, and its terminology was vague and overly broad.

The court upheld the law, ruling its definitions were precise and its aim clearly stated as prohibiting conduct that poses a clear and present threat to public safety.

A stated purpose

The court noted the Georgia General Assembly’s declaration of the law’s intent, as incorporated in the code section:

“It is not the intent of this … to interfere with the exercise of the constitutionally protected rights of freedom of expression and association. The General Assembly recognizes the constitutional right of every citizen to harbor and express beliefs on any lawful subject whatsoever, to associate lawfully with others who share similar beliefs, to petition lawfully constituted authority for a redress of perceived grievances, and to participate in the electoral process. The General Assembly, however, further finds that the State of Georgia is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities, both individually and collectively, present a clear and present danger to public order and safety and are not constitutionally protected. The General Assembly finds that there are criminal street gangs operating in Georgia and that the number of gang related murders is increasing. It is the intent of the General Assembly in enacting this chapter to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs which together are the chief source of terror created by street gangs.”

The court cited a standard for determining whether a law is unconstitutionally vague:

“A law may be unconstitutionally vague if it fails to provide the kind of notice that will enable ordinary people to conform their conduct to the law or if it fails to provide sufficient guidelines to govern the conduct of law enforcement authorities, thus making the law susceptible to arbitrary and discriminatory enforcement.”

Georgia’s gang law, with its statement of purpose and specific definitions, was sufficiently precise, the court wrote:

“Vagueness challenges to anti-gang legislation have consistently been unsuccessful where the statute, as properly construed, requires active participation in the gang with knowledge of its criminal behavior, imposes a specific intent requirement, or specifically defines critical terms…. We conclude that it (the gang law) provides a sufficiently definite warning to persons of ordinary intelligence of the prohibited conduct and that it is not susceptible to arbitrary and discriminatory enforcement.”